* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 16 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-6190

v. W.D. Oklahoma GREGORY KENT WALLACE,

Defendant - Appellant. (D.C. No. 96-CR-97)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered submitted without oral argument. Gregory Kent Wallace was convicted and sentenced oneight counts of drug- and firearm-related offenses. The district c ourt enhanced his sentence for-2-

obstruction of justice and denied a downward adjustment for acceptance of responsibility. Mr. Wallace appeals his sentence, arguing that (1) the enhancement for obstruction of justice was improperbecause the district court did not properly find that he had committed perjury; an d (2) the court should have granted a downward adjustment for acceptance of res ponsibility because he admitted his involvement in the criminal activity i mmediately after his arrest and testified truthfully at trial in order to assert an entrapment defense. For the reasons set forth below, we affirm.

BACKGROUND Mr. Wallace was named along with two other defendan ts in an eighteencount superseding indictment. After the other defe ndants pleaded guilty, Mr. Wallace was tried by a jury on fifteen of the count s. The government presented the testimony of eleven witnesses in its case in ch ief, four of whom took part in, or observed Mr. Wallace’s involvement in, drug and firearm trafficking during the spring of 1996, and four of whom were involved in h is arrest and the discovery of guns and drugs. The defense presented the testimony of three individuals who discussed Mr. Wallace’s search for his motorcycle, and Mr. Wallace testified that, in an attempt to recover his prized motorcycle thathad allegedly been stolen, he had been entrapped by a government informant into c ommitting the charged acts.-3-

The government rebutted Mr. Wallace’s entrapment de fense through the testimony of a witness who said that Mr. Wallace had dealt in drugs prior to the transactions in this case. On November 15, 1996, the jury found Mr. Wallace guilty of eight of the counts. The United States Probation Office prepared a Prese ntence Investigation Report, to which Mr. Wallace objected, claiming, in ter alia, that he should not receive an enhancement for obstruction of justice a nd that he should be granted a three-level downward adjustment for his acceptance of responsibility. On May 16, 1997, the district court conducted a hearin g, overruling those two objections and sentencing Mr. Wallace to 200 months ’ imprisonment followed by four years of supervised release. The sentence ref lects a criminal history category II and a base offense level of 20, enhanced 10 poin ts for various specific offense characteristics pursuant to U.S. Sentencing Guideli nes Manual § 2K2.1(b) (1995) (“USSG”), two more points for using a person under age eighteen to commit crimes pursuant to USSG § 3B1.4, and two final points for obstruction of justice pursuant to USSG § 3C1.1.

DISCUSSION I. Mr. Wallace first argues that the district court er red in enhancing his sentence for obstruction of justice pursuant to USS G § 3C1.1 because its findings were not specific enough. We review the district c ourt’s factual findings on this-4-

issue for clear error and its legal conclusions de novo. United States v. Shumway , 112 F.3d 1413, 1426 (10th Cir. 1997). Section 3C1. 1 provides for a two level upward adjustment “[i]f the defendant willfully obs tructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the in stant offense.” The enhancement is appropriate when the defendant commi ts perjury. USSG § 3C1.1, comment. (n.3(b)). However, a defendant is not aut omatically guilty of perjury merely because he or she testifies at trial and is found guilty. United States v. Markum , 4 F.3d 891, 897 (10th Cir. 1993); see also United States v. Dunnigan , 507 U.S. 87, 95 (1993); United States v. Hansen , 964 F.2d 1017, 1020 (10th Cir. 1992). A defendant commits perjury for purposes of § 3C1.1 if he or she “gives false testimony concerning a material matter with t he willful intent to provide false testimony, rather than as a result of confusi on, mistake, or faulty memory.” Dunnigan , 507 U.S. at 94. The district court must review t he evidence and make independent findings necessary to establish obstruc tion of justice under the perjury definition. Id. at 95. We have held that the court must identify, at least in substance, the portions of the defendant’s testimony it considers to be perjurious. United States v. Massey , 48 F.3d 1560, 1573 (10th Cir. 1995). “Once the perjurious testimony is identified, Dunniganthen permits fairly conclusory findings that such testimony was false, material, a nd given with intent to commit-5-

perjury . . . .” Id. at 1574. If the district court focuses on the spe cific testimony it considered perjurious, that is “sufficient to al low us to review the substance of its finding, which is all that is required by Dunni ganand its progeny in this circuit.” United States v. Lang , 81 F.3d 955, 969 (10th Cir. 1996). At the sentencing hearing, the government pointed t o several portions of Mr. Wallace’s testimony that it argued constituted perjury. It showed that Mr. Wallace had testified that he did not possess a wor king silencer, while the government’s expert witness had testified that the silencer found at his house did work. R. Vol. VII at 78-80. Also, Mr. Wallace had testified that nearly all of the government’s witnesses lied about various facts inv olving him. Id. at 71-74. Finally, the government pointed out that Mr. Wallac e had testified that he did not know the price of a vial of methamphetamine, which he had stolen from another individual in order to show others that he knew howto manufacture it, while in reality he already had his own supply of the drug a nd knew its price. Id. at 82-83. Unsatisfied with the government’s showing, the court stated: I just will sustain the objection. I don’t think t here’s sufficient evidence the government has offered of the defendan t having obstructed justice. It’s the government’s burden and I find that they have failed to produce sufficient evidence of obstr uction. Id. at 84. The government then recited another portion of Mr. Wallace’s trial testimony, with comments, as follows:-6-

“Question: When you’re doing these narcotics trans actions”—he’s convicted of the narcotics transactions—“and sellin g these guns, nobody is forcing you to do that; is that right? “Answer: Yes, they are; [the government informant] is. “Question: He’s forcing you by doing what? “Answer: By enticing me with knowledge of my motor cycle. “Question: He’s not holding a gun to your head, is he? “Answer: Yes, sir, he is.” Id. at 85. The following exchange then took place between the court and counsel for the defense: THE COURT: Well, isn’t the thrust of [this] testim ony . . . that the only reason I was selling drugs and selling guns wa s because I was enticed by a government informant or a government a gent and I wouldn’t have done it otherwise? MR. POINTER: That was the entrapment defense, yes, your Honor, but that’s not perjury. THE COURT: If it’s false. Id. at 86. The court then granted the enhancement, st ating: Well, I’m going to go back on what I just said: I’ m going to overrule the objection. I do think that’s perjury. I’m sat isfied the defendant perjured himself in his defense. The idea that he was selling guns and drugs for the purpose of finding his motorcycle , I don’t believe. That was the entire thrust of the defense. I thinkhe sold guns and drugs because he wanted to sell guns and drugs. He ’s testified there that he was doing it only because he was being forc ed to in an effort to find this motorcycle. I just don’t believe that . I think he perjured himself and he did attempt to posture an entrapmentdefense where I don’t think there was an entrapment defense. So I’ m reversing myself in that regard. R. Vol. VII at 87. Defense counsel challenged the court’s undefined standard and burden of proof and disputed that all of the elemen ts of perjury had been satisfied, whereupon the court explained:-7-

Well, obviously the jury found beyond a reasonable doubt that a government agent didn’t wrongfully entice this defe ndant to commit these crimes. I know I’m not bound by what the jury did, but I agreed with what the jury did, and I find, beyond areasonable doubt, that this defendant was not entrapped, and contraryto his testimony, that he was entrapped. He testified that this was the only reason he was making these sales was because this agent entic ed him to do so, and I just do not believe that. I think he was lyi ng. I’m satisfied that he was a drug dealer and he was a gun dealer and he was more than willing to go along—not go along, but to make these sales of those drugs and weapons and drugs, as found in the counts of conviction, so I’m going to overrule your objection in regard t o obstruction. Id. at 88. The district court’s statement above is an explicitfinding of falsity. The court recognized the second element of perjury by t elling the government that any statement it bases its obstruction enhancement on m ust “be on a matter material.” R. Vol. VII at 78. The remaining element, willful intent to provide false testimony, is implicitly recognized by the court in the above statements, particularly in its statement that “he did attempt to posture an entrapment defense where I don’t think there was an entrapment defense .” Id. at 87. Upon our review of the record, it is clear that Mr. Wallace’s testimony meets each of the elements of perjury, and that the district court’s finding is not clearly erroneous. Mr. Wallace repeatedly testifie d that he was only selling or posing as a seller of drugs and guns because a gove rnment informant entrapped him by enticing him with the recovery of his stolen motorcycle. See, e.g. , R. Vol. V at 446-48, 490-91, 520; R. Vol. VI at 576. The a ssistant chief of police for the-8-

city of Nicoma Park, Tim Williams, testified that h e had told Mr. Wallace in late April 1996 that his motorcycle was in police custody. R. Vol. V at 410-11, 423, 425-26. Notwithstanding his knowledge of his motor cycle being in police custody, Mr. Wallace admitted that he engaged in se veral criminal acts subsequent to that time. Id. at 476-83. Several witnesses also testified as to Mr. Wallace’s involvement in those activities after the motorcycle was in police custody. See, e.g. , R. Vol. III at 53-65, 70-73; R. Vol. IV at 182-93 , 209-19, 265- 69. Because Mr. Wallace’s testimony satisfies the elements of perjury and because there is no lack of evidence contradicting the testimony, we are convinced that the district court did not err in it s finding of perjury. Mr. Wallace also argues that the obstruction of jus tice enhancement is not appropriate because his testimony was in furtheranc e of the affirmative defense of entrapment. We also reject this contention. While it is a defendant’s constitutional right to testify on his own behalf, that right does not extend to giving perjurious testimony. See Dunnigan , 507 U.S. at 96; Hansen , 964 F.2d at 1020. And while “an accused may testify to matters such as lack of capacity, insanity, duress, or self-defense”—or entrapment as in this case—the district court may still find that such testimony is perjuri ous and enhance the sentence for obstruction of justice accordingly. Dunnigan , 507 U.S. at 95; see also United
States v. Yost , 24 F.3d 99, 105 (10th Cir. 1994). We therefore a ffirm the enhancement for obstruction of justice.-9- II. Mr. Wallace next argues that because he admitted hi s involvement in the sale of firearms and drugs both at the time of his arrest and at trial he is entitled to a three-point downward adjustment for acceptance of responsibility pursuant to USSG § 3E1.1. This section provides for a two-point downward adjustment if “the defendant clearly demonstrates acceptance of r esponsibility for his offense.” An additional point may be given if the defendant h as assisted authorities in the investigation or prosecution of the misconduct by t imely providing information to the authorities concerning his involvement or by ti mely notifying the government of a guilty plea. This is a factual determination that is entitled to great deference, and it will be reversed only upon a showing that th e district court’s decision was clearly erroneous. United States v. Gallegos , 129 F.3d 1140, 1146 (10th Cir. 1997); United States v. Hoenscheidt , 7 F.3d 1528, 1531-32 (10th Cir. 1993); see USSG § 3E1.1, comment. (n.5). The defendant bears the burden of proving he or she is entitled to this adjustment. United States v. Reed , 114 F.3d 1053, 1058 (10th Cir.), cert. denied , 118 S. Ct. 316 (1997). The downward adjustment does not generally apply to a defendant who denies the essential factual elements of guilt, is convicted after trial, and only then expresses remorse. USSG § 3E1.1, comment. (n. 2). However, in rare situations the adjustment may be granted even thoug h a defendant exercises his constitutional right to a trial so as to assert and preserve issues not relating to-10-

factual guilt, such as a constitutional challenge t o a statute. Id. In addition, although conduct resulting in an enhancement for ob struction of justice ordinarily indicates a lack of acceptance of responsibility, t here may be extraordinary cases in which adjustments under both sections apply. US SG § 3E1.1, comment. (n.4). Mr. Wallace has not proven that this is one of thos e rare and extraordinary situations. The adjustment was not denied solely b ecause Mr. Wallace relied on an entrapment defense at trial, as the defense asse rts on appeal. Rather, the court said, and we agree, that not only did Mr. Wallace n ever accept responsibility for his actions, but he also perjured himself in an att empt to escape punishment. R. Vol. VII at 62, 87. Such conduct is not becoming o f one who accepts responsibility for his actions. What we said in Hansen , 964 F.2d at 1021-22, applies here as well: It is difficult for this Court to envision how the defendant argues that he affirmatively accepted responsibility for his cr iminal action when throughout the proceedings he maintained that his c riminal action was not his fault, but rather, it was the result of government inducement.

. . . . In the case now before the Court, the defendant did not admit guilt, but contested a finding of guilt in his case . While admitting to selling drugs, the defendant did not accept respons ibility for this action. Instead, he attempted to place the blame f or his selling drugs upon the government inducement. Id. Although it is possible that a failed entrapment defense could coexist with an acceptance of responsibility adjustment, see Hoenscheidt , 7 F.3d at 1532, this is-11-

not such a case. Accordingly, we find no clear err or in the district court’s refusal to grant an adjustment for acceptance of responsibi lity.

CONCLUSION For the reasons stated above, we AFFIRM the sentenc e of the district court.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge